27 September 2011

How Reliable Do You Think Your Memory Really Is? The Hazards of Eyewitness Identification

I used to think I had a pretty good memory. Not for the "remember to get the milk and put out the garbage" kind of thing - though I have been working on improving that - but for the key details of major life events, like what someone looked like. Now I'm not so sure.

Eyewitness identification is a key component of most prosecutions. That dramatic television moment, where the witness slowly but firmly raises his arm, points at the accused, and cries out "That's him, Your Honour!" The fact that the "him" might be wearing an orange jump suit and shackles still doesn't completely negate the value of that in-court identification. But increasingly judges are discounting that in-court proof of what is always an essential element of the prosecution's case: identity.

A New Jersey case recently relied on an exhaustive study into the perils of in-court eyewitness identification. Faulty eyewitness identification was cited in the vast majority of U.S. wrongful conviction cases. The courts now have been given a host of factors to consider in weighing whether there are sufficient surrounding factors of reliability to permit admission of the evidence.

But the question remains, should a witness be barred from identifying the accused in court if there aren't sufficient circumstantial guarantees of reliability, or should the testimony of the witness simply be given less weight?

1 comment:

In Utah courts have to give the jury a specific instruction explaining why eyewitness IDs are inherently unreliable (unless, of course, the witness knows the defendant personally). Some cases call for an expert to testify about the pitfalls of eyewitness ID, but prosecutors fight hard to exclude such testimony.

The prosecution's opposition to such scientifically sound testimony is hard for me to swallow, particularly in light of the fact that prosecutors are *supposed* to be motivated by the interests of justice, not obtaining a conviction by any means, foul or fair. Unfortunately, the reality does not often reflect what should be.